October 15, 1996
The Honorable Marc Basnight President Pro Tempore North Carolina General Assembly State Legislative Building Raleigh, North Carolina 27601-2808
Re: Advisory Opinion Ocean Beach Renourishment Projects, N.C.G.S. §146-6(f)
Dear Senator Basnight:
We reply to the questions raised in your recent letter addressed to Joe Henderson, Director of the State Property Office.
We repeat the questions in your letter and follow with our answer. The more general discussion which shows the reasoning for the answers follows.
QUESTIONS AND ANSWERS
Question 1. Where publicly financed beach nourishment has occurred and previously lost public and private land is restored, who holds title to the restored land – the private property owner or the State of North Carolina? Please explain.
Answer. Title to the restored land vests in the State of North Carolina pursuant to N.C.G.S. § 146-6(f) which provides in pertinent part: "Notwithstanding the other provisions of this section, the title to land in or immediately along the Atlantic Ocean raised above the mean high water mark by publicly financed projects which involve hydraulic dredging or other deposition of spoil materials or sand vests in the State."
Question 2. Does your opinion in question #1 change if the renourishment and restoration of lost land is privately financed? Why or why not?
Answer. Yes, the opinion changes because N.C.G.S. §146-6(f) declares that "[t]itle to such lands raised through projects that received no public funding vests in the adjacent littoral proprietor."
Question 3. In determining title to restored/renourished ocean-front property, is there any distinction made between restored land which was lost gradually through erosion as opposed to land lost suddenly (such as through a storm)? Please explain.
Answer. N.C.G.S. §146-6(f) recognizes no such difference. Furthermore, any difference which existed in the Common Law was abrogated in 1959 when the General Assembly adopted
N.C.G.S. §146-6. That statute provides the means to determine the title to lands raised from navigable waters of the state when the lands were lost "by natural causes". The phrase "natural causes" includes loss due to erosion as well as loss due to sudden events such as a hurricane.
Question 4. If previously lost private ocean-front property is restored through publicly financed beach renourishment and title is determined to be vested with the State, does the private property owner have any means by which he can regain title to that restored property which was previously owned by him? Please explain.
Answer. When title to the renourished land vests in the State, it is impressed with public trust rights and becomes a part of the "vacant and appropriated lands" of the State. N.C.G.S. §146-4 authorizes the Department of Administration to sell the "vacant and appropriated lands . . . at public or private sale, at such times, upon such consideration, in such portions, and upon such terms as are deemed proper by the Department and approved by the Governor and Council of State." Owners of property lost to natural causes can make application to purchase any part of the newly created land which is not needed to meet the public trust reservations. Along with the other requirements to which such a sale may be subjected under Chapter 146, the sale would have to include a condition or limitation which preserved the public trust rights created in and impressed on the lands by N.C.G.S. §146-6(f).
ANALYSIS The replies to your questions were derived from N.C.G.S. §146-6(f), a 1985 addition to the statute. A legislative study commission proposed the bill which resulted in the addition. The bases for the bill were identified from the on-going experience of the Atlantic Beach beach nourishment project. When the U.S. Army Corps of Engineers conducts such projects, the local sponsor of such projects is required to secure easements or other permission from each adjacent ocean front land owner. The time and expense to secure these easements is significant. The Atlantic Beach project was delayed for a season to secure the easements to fill from the ocean front land owners.
Most nourishment projects have only occurred on beaches which are severely eroded and which are densely settled. A beach once nourished will require renourishment. Over time, the projects will require renourishment with increasing frequency. By vesting the newly created lands in the State, the need to secure easements for future projects on the same beach is avoided if the renourishment occurs before the erosion consumes the initial project.
A second significant reason for the legislation was to assure continued public beach areas.
N.C.G.S. §77-20(a) declares that the boundary between public and private property along the ocean front is the mean high water mark of the Atlantic Ocean. Under the Common Law, the publicly owned area of the natural beaches is the foreshore or "wet sand beach", the area exposed at low tide and covered by water at high tide. Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach, 277 N.C. 297, 302 (1970). Because the public ownership stops at the high water line, the public must either be in the water or on the dry sand beach when the tide is high. The term "dry sand beach" refers to the flat area of sand seaward of the dunes or bulkhead which is flooded on an irregular basis by storm tides or unusually high tides. It is an area of private property which the State maintains is impressed with public rights of use under the public trust doctrine and the doctrine of custom or prescription. See Concerned Citizens of Brunswick County Taxpayers Ass’n. v. State ex rel. Rhodes, 329 N.C. 37, 55 (1991). As the beach area erodes on developed beaches so that the mean high water line moves closer to the foundations of ocean front structures, the area of dry sand beach regularly used by the public is lost.
The Division of Coastal Management, in its advocacy of the bill, urged that public beach access be assured on the newly created beaches through public ownership of the beaches. In 1981, the legislature included in the legislative findings for the Coastal and Estuarine Water Beach Access Program the following:
The public has traditionally fully enjoyed the State’s ocean and estuarine beaches and
public access to and use of the beaches. The beaches provide a recreational resource of
great importance to North Carolina and its citizens and this makes a significant
contribution to the economic well-being of the State. The ocean and estuarine beaches are
resources of statewide significance and have been customarily freely used and enjoyed by
people throughout the State. N.C.G.S. §113A-134.1.
The addition of paragraph (f) to N.C.G.S. §146-6 should be read in pari materia with findings stated above and the other purposes of the Beach Access statute. It was intended to assure public use areas on beaches which were so severely eroded that renourishment was needed and where little or no traditional dry sand beach area existed between ocean front structures and the foreshore. N.C.G.S. §146-6(f) should be interpreted and applied in light of the two legislative purposes described above.
The ownership of lands which become submerged by navigable waters due to natural causes and which later become raised from navigable waters, whether by nature or man, are subjects addressed by the Common Law. See 1 Robert E. Beck, Water & Water Rights, §6.03(b)(2) at pp. 187-194 (1991 ed.); Vol.I Henry P. Farnham, Water & Water Rights,§§71,72, and 74 at pp. 32629, 331-32 (1904); A. Dan Tarlock, Law of Water Rights & Resources, §3.09[4] at pp.3-48.5 to 3-53 (1996 ed.); John Gould, Gould on Waters, §158 at pp. 314-15 (1900 ed.). When the General Assembly enacted the State Lands Chapter in 1959, it followed much of the Common Law; however, the alterations to the Common Law included the matters presented by your questions. The Common Law of England, as of July 4, 1776, is the law of this state until it is altered by the enactment of statutes or decisions of our appellate courts. N.C.G.S. §4-1; Gwathmey v. State, 342 N.C. 287, 296 (1995). The Common Law recognized a distinction between land lost by erosion and land lost by avulsion, both of which are caused by nature. N.C.G.S. §146-6(f) supplanted the Common Law rule for the ownership of filled ocean front property to make the State the owner of such lands. However, the Common Law rules continue to apply when the dispute over ownership of raised land is between private parties and does not involve the State. See State v. Johnson, 278 N.C. 126 (1971); Ward v. Sunset Beach, 53 N.C. App. 59 (1981).
With the enactment of N.C.G.S. §146-6, the legislature superseded the Common Law distinctions for lands lost due to "natural causes" and later raised from navigable waters by dredging or similar means when the ownership dispute is between the State and another. See
N.C.G.S. §146-6(b). Under the 1959 act, all lost lands belonged to the State and all raised lands could be acquired by the owner who was adjacent to the raised lands. The statute was amended in 1985 by the addition of paragraph (f), whereby lands raised on the ocean front by publicly financed projects become State owned while lands raised without any use of public funds become the property of the adjacent littoral proprietor, subject to public rights of use.
Chapter 146 assigns all state lands to one or more of several categories. Among the categories, the only one applicable to lands raised from the bed of the Atlantic Ocean is "vacant and unappropriated lands." N.C.G.S. §146-64(6) and (9). As a general rule, the means to acquire vacant and unappropriated lands from the State would be for the prior property owner to submit a request to the State Property Office in the Department of Administration. The terms and conditions, including price for such a sale, are set by the Department and the Governor and the Council of State. See N.C.G.S. §146-4. At least one condition on such sales is established by statute. Since it is a public trust condition, it can only be waived by an express legislative act. See Gwathmey v. State, supra.
That condition is found in the concluding sentence of N.C.G.S. §146-6(f), which reads: "All such raised lands shall remain open to the free use and enjoyment of the people of the State, consistent with the public trust rights in ocean beaches, which rights are part of the common heritage of the people of this State." In a separate statute arising from the same legislative study commission, the term "public trust rights" was defined to include ". . . the right to freely use and enjoy the State’s ocean and estuarine beaches and public access to the beaches." N.C.G.S. §1-45.1. The lands available for sale will be those excess lands not required to satisfy this reservation. Consistent with the language of the statute, an area must be reserved which is equal to the area of historic public use on natural beaches, along with access across the nourishment area to the beach area. Owners of property lost to natural causes can make application to purchase any part of the newly created land which is not needed to meet the public trust reservations. Along with the other requirements to which such a sale may be subjected under Chapter 146, the sale would have to include a condition or limitation which preserved the public trust rights created in and impressed on the lands by N.C.G.S. §146-6(f).
If further explanation or clarification is desired, please contact Dan McLawhorn at your convenience.
Daniel C. Oakley Senior Deputy Attorney General
Daniel F. McLawhorn
Special Deputy Attorney General